Law & Disorder —

Tenenbaum’s P2P use: the labels made me do it!

In his request for a new trial, convicted P2P copyright infringer Joel …

For journalists, the Joel Tenenbaum P2P case has been the gift that keeps on giving. Case in point: the team's court filing asking for either a new trial or a vastly reduced damage award. It turns out that the labels were at least partially responsible for Tenenbaum's years of P2P sharing.

"Plaintiffs, in August 2004, could reasonably be considered to have been at least partially responsible for the widespread dispersion of their recordings over peer-to-peer networks like Napster and Kazaa," writes Harvard Law professor Charles Nesson, Tenenbaum's lawyer.

"Their continued conduct of releasing their recordings into a digitally networked environment on DRM-free CDs made the proliferation of their recordings on the peer-to-peer networks trivially easy. Their aggressive promotion of their recordings made such proliferation entirely predictable. Indeed, their mode of publication all but invited sharing. Plaintiffs knew, or should have known, exactly where their sound recordings would end up."

Music: the new in-ground pool?

If this sounds like a bizarre exercise in buck-passing, Nesson draws a parallel with in-ground swimming pools. Homeowners who have one are responsible for safeguarding it from small children, as the pool can be an "attractive nuisance" with potentially fatal effects on a child who stumbles into one unattended.

In tort law, as the Court recognized, Op. at 29, a landowner is subject to liability for physical harm to trespassing children caused by an artificial condition upon the land where there is a substantial risk of serious bodily harm and the landowner fails to exercise reasonable care to eliminate the danger. An unfenced in-ground swimming pool is the classic example. In this case, the plaintiffs facilitated and enhanced the comparative availability and attractiveness of their songs on the peer-to-peer networks. They failed to fence off the songs they published on CD by encrypting them, and they refused to provide an unencrypted online alternative for obtaining them. In consequence Tenenbaum, along with millions of others like him, fell into the vast, unfenced pool of unauthorized peer-to-peer file-sharing.

Nesson hopes to capitalize on the judge's obvious sympathy for Tenenbaum's plight. In her last major opinion, Judge Nancy Gertner took the extraordinary step of outlining all the ways Tenenbaum might have presented a winning "fair use" claim; one of those scenarios involved claiming that his activity, at least in the early years, was "fair" because there was no online legal alternative. Nesson wants to take that argument a step further.

Were music marketers just too good?

Gertner was the first federal judge to recognize the potential of such a claim, but she wanted to draw the line at iTunes. Once iTunes went live, people like Joel could no longer claim that they had no real online alternative to getting digital singles, and therefore P2P use could no longer be considered fair. Nesson argues that the cutoff date should actually extend all the way into 2007, when the major labels finally dropped DRM on music at stores like Amazon and then (eventually) at iTunes.

"Until 2007, the songs the record companies authorized for online purchase were encrypted," Nesson writes. "Not until 2007 did they make songs available online DRM-free. This difference is critical. The fact that digital media was DRM-free on Napster and Kazaa contributed substantially to their immense public appeal. Encryption, by contrast, limited transferability and necessitated proprietary hardware and software to play the encrypted songs. The advent of iTunes did nothing to correct these deficiencies."

The argument is that consumers are entitled to buying media in exactly the way they want (singles instead of albums) and in exactly the format they want (unencrypted singles vs. encrypted singles). If media companies don't provide their works in such formats... people like Joel can simply grab a free copy instead.

A Hobson's choice

According to Nesson, here was the choice that presented itself to his client in those dark, pre-2007 days.

"He could go through the concededly inadequate process of purchasing a full album of unencrypted songs on CD and then transferring the songs to his computer and other listening devices. He could buy individual songs online, but only in encrypted form, and decrypt them to make them freely transferable, but this would make him a federal criminal under the anti- circumvention provision of the DMCA. His third option was to continue to use a peer-to- peer platform that allowed him to download these songs DRM-free with only a few clicks on his computer."

His fourth option, one never mentioned in the brief, was to not listen to the songs at all, given that he disliked the restrictions in place on them and didn't want to pay for a full CD. But this is where the "attractive nuisance" argument mentioned above comes into play; the labels had made their shiny wares so enticing that Tenenbaum almost literally had no choice but to seek out and listen to such music.

"His downloading was, in reality, an expression of both the social force of technological revolution and a consequence of the plaintiffs’ marketing strategies," says Nesson. "The plaintiffs’ conduct can be seen as effectively luring Tenenbaum into a vibrant technologically-assisted youth culture. The plaintiffs’ affirmative marketing activities and their refusal to offer an equivalent online alternative created a situation akin to 'attractive nuisance.'"

But if Gertner won't revisit her fair use ruling and grant Tenenbaum a new trial, Nesson argues that she should reduce the massive statutory damages award against him to the legal minimum of $750 per song.